By Bo Kalabus
bo@kalabuslaw.comwww.rosenthalwadas.comwww.kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364
The client was arrested for burglary of a building along with another person. This was a very serious situation considering the client was young and now staring at a criminal charge that carries State Jail Felony penalties that are a minimum of 180 days to up to 2 years in jail and up to a $10,000 fine. Plus my client was also staring at all the baggage that comes with a felony conviction–no right to vote, no right to carry firearms, no right to buy ammunition, etc. There was no maneuvering room either considering the facts of the case pretty much had my client in a box. This is a pretty heavy burden for anyone to carry, much less a young person that may have suffered from a lapse of judgment due to addiction rather than being destructive in nature.

After several weeks of hard work on the case to gain some leverage to negotiate with the State, the prosecutor agreed to lower the charges from the felony level to the misdemeanor offense level. This dropped the potential punishment range down to 0 days to 1 year in jail and $0 up to a $4,000 fine from which the client received no fine and deferred adjudication, so no final conviction for the offense if the client completes probation. Better yet, the client will not have her rights cut in half and have to deal with the stigma of being a convicted felon.

As you can expect, my client was relieved and very pleased with the result-and also a little wiser from an experience that could have turned out to be much worse.

The client was arrested for allegedly assaulting his ex-wife by shoving her several times and pushing her to the ground. The State of Texas had several witnesses and on the surface it seemed like an easy case to prove. My client was charged with a Class A misdemeanor–the highest level of misdemeanor punishable up to 1 year in jail and a $4,000 fine. Moreover, the State of Texas also wanted to enhance the charge with an affirmative finding of family violence (AFV). The AFV acts like a baby felony that cuts your rights in half – when you have an AFV on your record, you cannot adopt a child, act as a managing conservator for your child, possess or transport a firearm or ammunition.

After working on the case to develop leads and evidence that was helpful to our side, we were able to gain leverage in negotiations and prosecutor agreed to reduce the Class A charge to a Class C misdemeanor assault by contact charge. The State also agreed to drop the AFV enhancement allegation–a giant relief. Finally, my client received deferred adjudication on this charge as part of the negotiation. This essentially reduced the offense to the equivalent of a traffic ticket. And following a 6 month non-reporting probation period (basically just keep your nose clean during the probation period), my client will be able to get the charge off his record–just like it never happened.

So what began for my client as a serious case with serious consequences ended up as something he can expunge off his record–as if the arrest never occurred. As you can expect, my client was relieved and very pleased with the result.

An affirmative finding of family violence (AFV) on you record is a bad thing. Family violence is defined under the family code as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” Tex. Fam. Code § 71.004.

Usually in a criminal case, the AFV is used to enhance an assault charge. What does an AFV on your record mean to you? Well, consider your rights as a U.S. citizen cut in half. Among the consequences of a first offense of an affirmative finding are:

• You can never be named as the “managing conservator” of a child in any divorce action or action requiring the placement of a child.

• You can never adopt a child under Texas law.

• You can never posses or transport a firearm or ammunition under federal law.

• If, at any time in the future you are charged with an assault against a family member or a member of your household or a person who qualifies under Texas law as a person with whom you have a “dating relationship”, that assault can be filed as a third degree felony offense regardless of the degree of physical injury.

As you can see, the AFV packs a powerful punch and can severely limit your freedoms down the road. If you find yourself facing such a charge, you should seek competent legal counsel that will fight for you and aggressively defend your case.

It happens. It happens more than you think. Think of it this way–we see it all the time in sporting events. Take football for example; when two players are pushing and shoving you see a yellow penalty flag fly in short order, which one gets the flag? Well, by the time we see the replay it’s usually the guy who has been hit, tripped, kicked, or spit on and he’s retaliating by shoving or hitting back. Why? Well, it also turns out that by the time the referee saw the action, the only thing he saw was our poor gentleman retaliating and getting the flag and penalty for the team. Why? Things happen fast in sporting events. The refs need to make the call bang bang.

The same thing can happen in an assault case or an assault family violence case. And here’s why–a fight of any sort is a very difficult situation for any police officer to come into because it is so dangerous. A responding officer has to be concerned about the participants being injured, making sure the fight is contained before any innocent bystanders are injured, and of course the officer him or herself does not want to be injured. Depending on the situation, there can also be a concern of concealed weapons being brandished or worse, used.

Fights can also happen very fast. This being the case, if you have five witnesses, you could have five different stories of who witnessed what events. Witnesses may also see the fight after it had already escalated and guess at who really started it. The same is true for 911 callers that may hear or see a fight after it had already started and not know who the real aggressor is. Also, different stories can be told from the participants themselves making it very difficult for police to ascertain who is the victim and who is the aggressor.

Arrests have to be made and usually the police don’t have a lot of time to make a call in an assault case–they have to rush to judgment and get the situation under control. As citizens this is exactly what we want the police to do–make arrests quickly and keep us safe. But sometimes the police in haste may get things wrong.

As you can see, an assault charge can be relatively simple, or it can be very fact intensive. An assault charge is also very serious whether it is simple or complex and if it is an assault family violence charge, the impact of a conviction comes with far reaching consequences. And if you happen to think you are a victim, and the prosecutor thinks you are the aggressor, well then you are in for a long ordeal.

If you happen to find yourself in such a situation, I highly recommend consulting with an attorney on how to navigate the justice system and mount a proper defense and if needed get a competent investigator and/or therapist on the case to turn up facts that may not be readily available. First and foremost–if you are the victim and you were injured in the altercation-no matter how minor–make sure you get photographs of your injuries. Sometimes, the photographs themselves can speak volumes and give your counsel just the right amount of leverage to get the case dismissed or reduced.

My client was arrested following a violent struggle with her ex-husband. The client had gone over to her former residence to remove some belongings when a fight with her ex-husband ensued. During the struggle my client was hit in the face and kicked in the back. Breaking away from her ex-husband’s grasp she grabbed a broken piece from a plate to hold off him off. As the struggle continued, she struck him in the chest and sliced open his hand in several places as he tried to grab the shard of plate out of her hand. Police came and interviewed the ex-husband and my client. Several days later, my client was arrested and later indicted for aggravated assault with a deadly weapon family violence–and facing from 2-10 years in jail (a 2nd degree felony).

The arrest sent shock waves through my client’s life–quite simply, life, as she had known it was over. Within a few weeks she was fired from her teaching job and a letter of investigation was placed in her file making her unemployable as a teacher. Furthermore, while case was pending her chances of retaining sole custody of her children was remote.

On the surface perhaps, this seems like an open and shut case of family violence for the State of Texas, or at best a risky trial for my client based on a theory of self-defense. But as our investigation into the case facts progressed we were able to develop enough evidence and leverage to convince the District Attorney that my client was not the aggressor, but in fact the victim.

The case was pending for over six months, but after much negotiation, the State of Texas dismissed the case outright. My client was much relieved and very pleased with the result.

If you received probation (also called community supervision), parole or deferred adjudication, you must abide by the terms of your release. If your probation or parole officer believes that you have violated any of the conditions, he or she may ask the court to issue a warrant for your arrest and revoke your probation. The more probation violations the probation officer alleges you have the more difficult it will be to defend probation violation charges against you. The most common probation or parole violations include:

• Failing a UA or drug test
• Being charged with a new criminal offense
• Failing to pay court-ordered fines
• Failing to pay court-ordered restitution
• Not remaining in contact with probation or parole officials

Many violations are the result of a miscommunication or a misunderstanding between you and your probation officer. It is important to hire an attorney that will attempt to convince the court to reconsider the termination of your probation or parole.

<strong>Hire an Attorney Who Will Fight to Protect Your Freedom</strong>

If the court finds that you have committed a probation violation, you may have to return to jail to finish all or part of your remaining sentence. It is your attorney’s job to prevent that from happening to you. You will need an attorney that will argue strenuously and aggressively for your release from custody, the continuation of your probation or the discharge of your probationary release.

Do not let a missed appointment or simple mistake send you back to jail. If you have a pending motion to revoke, or think you probation may be revoked, give criminal defense attorney Bo Kalabus a call to discuss your case at his McKinney law office at (972) 562-7549.

Family violence is a very serious crime, and Texas laws reflect this. Penalties for offenders are increasing, warrants are not needed to arrest, and the victim’s agreement is no longer needed to file charges and prosecute.

Under both the Texas Penal and Family Codes, an individual commits assault family violence if they “intentionally, knowingly or recklessly cause bodily injury” to a family member or household member. A threat that places someone in fear of imminent bodily injury can qualify as domestic assault.

A person arrested for family violence may be held in jail for up to 48 hours if there is reason to believe that violence will continue upon release and there have been prior instances of domestic violence, or a deadly weapon was used or exhibited–it does not matter if a person has bail posted right away, they can still be held for 48 hours if the above conditions exist. Also in the same vein, if a person is being held in Collin County jail, Frisco, or Plano City jails for family violence they are not eligible for an attorney bond or writ bond due to the swiftness of release from jail those two procedural mechanisms provide.

A first conviction for domestic assault is a class A misdemeanor, punishable by up to one year in jail and up to a $4,000 fine. The court may also find an affirmative finding of family violence which is bad news and has serious consequences, such as prohibiting the individual from owning a firearm–EVER and its effects on family court decisions.

Assault family violence is what we call an enhanceable crime, which means that subsequent offenses can increase the degree and range of punishment. For example, a second domestic violence offense can be a third degree felony, punishable by up to ten years in the penitentiary and up to a $10,000 fine. Habitual offenders can receive 25 years to live in the penitentiary.

As you can see, allegations of assault family violence are very serious and complicated. There are defenses to assault family violence such as self-defense and consent. If you are facing such allegations, you should consult an experienced attorney to help you navigate the process and defend your rights.

Bo Kalabus

Bo began his legal career as a civil litigator and specialized in defending personal injury cases. After several years in civil practice, Bo turned his focus to starting his own law firm and developing a criminal defense practice to complement his experience on the civil docket. On September 4, 2010 the Kalabus Law Firm was proud to announce its affiliation with Rosenthal & Wadas L.L.P.